LIFE IMPRISONMENT – CONVICTION MUST QUOTE SUBSECTION THAT AUTHORIZES SENTENCE

Ndlovu v The State [2017] ZACC 19

ALSO REPORTED AS:

S v NDLOVU 2017 (2) SACR 305 (CC)

 

[46] In the light of this, I can do nought but conclude, inexorably, that the Regional Court did not have jurisdiction to impose life imprisonment in terms of section 51(1) of the Minimum Sentencing Act. Mr Ndlovu was convicted of rape, read with section 51(2); accordingly, the Regional Court was required in terms of section 51(2) to impose a minimum sentence of 10 years (as he was treated as a first offender).31 The Regional Court’s jurisdiction was limited in terms of section 51(2) to imposing a maximum sentence of 15 years.32

[47] In the result, because the Regional Court did not have jurisdiction to sentence Mr Ndlovu in terms of section 51(1), his application must succeed. In the circumstances, it is unnecessary to consider the fair trial question.

 

S v NDLOVU 2017 (2) SACR 305 (CC)

Rape — Sentence — Life imprisonment — Minimum sentence in terms of Criminal Law Amendment Act 105 of 1997 — Charge of rape read with provisions of s 51(2) — Regional magistrate finding accused ‘guilty as charged’, but imposing life term in terms of s 51(1) due to infliction of serious injuries during rape — Evidence of injuries not automatically curing charge because such complete and not defective — Accused accordingly convicted of rape read with s 51(2), and regional magistrate not entitled to impose sentence of life imprisonment.

 

The applicant was charged in a regional magistrates’ court with rape subject to the provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997 (Minimum Sentencing Act). This was despite the fact that the complainant had suffered grievous injuries in the commission of the crime at the hands of the applicant. At the commencement of the trial the magistrate informed the applicant that if he were convicted, the court was bound to impose a minimum sentence of 15 years’ imprisonment if he were a first offender. After hearing the evidence of the serious nature of the injuries sustained by the complainant, the magistrate found the applicant ‘guilty as charged’, but sentenced him to life imprisonment in terms of s 51(1) of the Minimum Sentencing Act.

An appeal to the High Court was dismissed, the court not dealing with the issue of whether the regional court had jurisdiction to impose a life sentence in such circumstances. A further appeal to the Supreme Court of Appeal also failed without the court considering the question of the regional court’s jurisdiction.

Held, that the magistrate’s statement, that the accused was found ‘guilty as charged’, was unambiguous and meant that he was convicted of an offence referred to in part III of sch 2. The evidence of the complainant’s injuries also did not automatically cure the charge as it was complete and not defective. The regional court accordingly did not have jurisdiction to impose life imprisonment in terms of s 51(1), and that sentence had to be set aside (see [44]–[48]).

Held, further, that the appropriate and proportionate sentence to be imposed in the circumstances was the maximum sentence that the regional court could have imposed following the conviction of rape read with s 51(2), namely 15 years’ imprisonment (see [52]).

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